The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,

Meeting on 24 March 1983,

Having concluded its
consideration of Communication No. 49/1979 submitted to the Committee by
Dave Marais under the Optional Protocol to the International Covenant on
Civil and Political Rights,

Having taken into account all
written information made available to it by the author of the communication
and by the State party concerned,

Adopts the following:

VIEWS UNDER ARTICLE 5 (4) OF THE
OPTIONAL PROTOCOL

1.1 The communication
(initial letter dated 19 April 1979 and several subsequent letters) was
initially submitted by Mr. and Mrs. Dave Marais, St., South African
nationals living in South Africa, on behalf of their son, Dave Marais, Jr.,
a South African national detained in Madagascar. The alleged victim is also
represented before the Committee by Maitre Eric Hamel, who was an attorney
at Antananarivo, Madagascar, until his expulsion by the Malagasy authorities
on 11 February 1982, and is at present in France.

1.2 The initial authors
claim that their son is unable to submit a communication himself, as he is
allegedly not permitted to engage in correspondence from the prison where he
is held in Madagascar.

1.3 The initial authors
state that their son was a passenger on a chartered aircraft, which, on the
route to Mauritius, was forced to make an emergency landing in Madagascar on
18 January 1977 because of lack of fuel. Dave Marais, Jr. and the pilot of
the aeroplane, John Wight, were arrested at that time, and, it appears,
subsequently tried for overflying Malagasy territory, convicted and
sentenced to five-year prison terms. Another passenger, Ed Lappeman, a
United States citizen, was also tried and convicted on the same charges. The
authors allege that their songs right to a fair trial and the guarantees
necessary for his defence were continuously violated. The alleged victim's
first attorney, Jean-Jacques Natai, left Madagascar and was refused re-entry
into the country. It appears that Dave Marais, Jr., was subsequently
represented by two other lawyers before his defence before the domestic
courts was undertaken by Maitre Eric Hamel.

1.4 Regarding domestic
remedies, the initial authors state that letters have been sent to various
authorities in Madagascar pleading for the release of Dave Marais, Jr., but
that all such efforts have been in vain.

1.5 The initial authors do
not specify the articles of the Covenant allegedly violated.

2. The mother of the
alleged victim, Mrs. E. Marais, in a letter to the Committee dated 25
October 1979, stated that she had learned from an anonymous source that her
son had been transferred to a gaol 60 km from Antananarivo and that he had
been separated from John Wight, who was in a prison north of Antananarivo.
She stated that she had not received any letters from her son and that she
was not allowed to write to him. She had written many letters to President
Ratsiraka, but had never received a reply. All her applications for a visa
were refused. She had also telephoned one of her son's former lawyers in
Antananarivo, who allegedly was intimidated and could give no information
about her son.

3. By its decision of 7
August 1979, the Human Rights Committee transmitted the communication under
rule 91 of the provisional rules of procedure to the State " party
concerned, requesting information and observations relevant to the question
. of admissibility of the communication.

4.1 In its submission of
20 February 1980, the State party objected to the admissibility of the
communication on the ground that the alleged victim had not exhausted
domestic remedies.

4.2 The State party stated
that Dave Marais, Jr. and two others had been accused of offences punishable
under articles 82 (3) and 83 (2) of the Penal Code of Madagascar and Decree
No. 75-112 MD of 11 April 1975, for espionage and overflying the territory
"while the state of emergency was in force". They had been detained on 18
January 1977, remanded in custody on 4 February 1977; the order for their
arrest was issued by the Criminal Proceedings Division on 24 February 1978
and referred on the same date to the competent military court. By Judgement
No. 105 of 22 March 1978, the Military Court convicted Dave Marais, Jr. and
the two others:

"of having, on 18 January 1977,
and in any event within the last three years, at Manakara and Mananjary and
over Malagasy territory in general, flown over Malagasy territory in a
foreign aircraft without being authorized to do so by any diplomatic
convention and without permission from the Malagasy authorities, thereby
endangering, in time of peace, the external security of the State of
Madagascar"

They were sentenced to five
years in prison and a fine of 500,000 francs, with confiscation of the
articles seized.

4.3 While serving their
sentence, Dave Marais and another person escaped from the Antananarivo
Central Prison, where they were being held. They were apprehended and
brought before the prosecuting authority. On 16 June 1979, the examining
magistrate was requested by the prosecuting authority to bring an indictment
against Dave Marais et al.

4.4 The State party
further explained that if Dave Marais thought that his rights had been
violated, he could, either on his own behalf or through his counsel, have
referred the matter to the examining magistrate or invoked article 112 (2)
of the Code of Criminal Procedure, which provides that many violation of the
measures for the protection of the freedom of the individual prescribed by
the articles contained in this chapter shall be punishable under the
provisions of articles 114 et seq. of the Penal Code".

5.1 By its decision of 25
July 1980 the Human Rights Committee, having taken note of the State party's
submission of 20 February 1980 and noting, inter alia, that the State party
referred in its submission to "the state of emergency' in force in the
Democratic Republic o[ Madagascar on 18 January 1977, requested the State
party in the light of the obligation imposed by article 4 (3) of the
Covenant to clarify whether the right of derogation referred to therein had
been applied and, if so, whether any derogation had in any way affected the
alleged victim; it also requested the State party to furnish further
information and clarifications as to the following points, in order to
enable the Committee to ascertain whether domestic remedies had been
exhausted by or on behalf of the alleged victim:

(a) Whether the alleged
victim had been informed of and afforded an effective opportunity to invoke
article 112 (2) of the Code of Criminal Procedures;

(b) Whether there were any
other remedies that could be invoked by the alleged victim in the particular
circumstances of his case and, if so, whether he had been informed about
them and afforded an effective opportunity to resort to them;

(c) The results of the
preliminary investigation carried out by the Third Department, Antananarivo,
and the present stage of the proceedings that might have ensued;

(d) The means of
communication between the alleged victim, his family and legal counsel, in
particular his access to Maitre Eric Hamel, who, according to information
furnished by the mother of the alleged victim, had undertaken to represent
Dave Marais in his defence before the domestic tribunals.

5.2 The Human Rights
Committee further requested the State party

(a) to furnish the
Committee with copies of the judgement of the Military Court, No. 105 of 22
March 1978, and the judgement of the Supreme Court, rendered on 20 March
1979, both of which were referred to in the State party's submission of 20
February 1980;

(b) to furnish information
as to the whereabouts and the state of health of the alleged victim;

(c) to submit the
information and clarifications sought to the Human Rights Committee in care
of the Division of Human Rights, United Nations Office at Geneva, within six
weeks of the transmittal of this decision to it.

5.3 The Human Rights
Committee at the same time decided to make known to Maitre Eric Hamel the
contents of the decision, with a view to obtaining from him any pertinent
information about the situation of Dave Marais and the issues complained of
in the communication, and to furnish him at the same time, in his capacity
as legal representative of the alleged victim, with copies of the
submissions of the authors of the communication and the State party, as well
as with the text of the Committee's decision of 7 August 1979.

6. By its decision of 24
October 1980, the Human Rights Committee, noting that no response had been
received from the State party following the Committee's decision of 25 July
1980, decided to urge the State party, without further delay, to provide the
Human Rights Committee with the information and clarifications sought in the
Committee's decision of 25 July 1980, including the information requested
concerning the whereabouts and the state of health of Dave Marais, Jr.

7. By its decision of 31
March 1981, the Human Rights Committee, noting with concern that no further
information or clarifications had been received in response to its decisions
of 25 July 1980 and 24 October 1980, and considering that the State party's
failure to provide the Committee with the information and clarifications
requested had hampered the Committee's consideration of the communications:

(a) strongly urged the
State party to provide the Committee without delay with the information and
clarifications already requested, including, inter alia, the text of the
judgement No. 105 of 22 March 1978 of the Military Court and the judgement
of 20 March 1979 of the Supreme Court, as well as detailed information
relating to the alleged victim's state of health and whereabouts and his
access to his legal representative, Maitre Eric Hamel;

(b) Requested the State
party, should there hitherto have been any obstacles barring Maitre Eric
Hamel from access to his client, to take the necessary steps to remove such
obstacles and to ensure that the lawyer and his client had the proper
facilities for effective access to each other. The State party should inform
the Committee of the steps taken by it in this connection;

(c) Expressed the hope
that the State party would be in a position to provide the information
sought pursuant to the instant decision and the Committee's earlier
decisions of 25 July and 24 October 1980, by not later than 1 June 1981, so
that further delays in the consideration of the communication could be
avoided;

(d) Decided that any
information or clarifications received from the State party pursuant to this
decision should be transmitted to the authors of the communication and to
Maitre Eric Hamel, in his capacity as legal representative of Dave Marais,
Jr., to enable them to comment thereon.

8.1 In a submission of 16
May 1981, Maitre Eric Hamel stated that Dave Marais, Jr. and John Wight
appeared before the Antananarivo Court of Summary Jurisdiction on 14 May
1981 on charges of prison-breaking and complicity in overflying the
territory of Madagascar; by a judgement of 15 May 1981, the Antananarivo
Court sentenced Dave Marais and John Wight to two years' imprisonment and a
fine of 1 million francs; under this judgement they should be released from
prison on 4 February 1984, but an appeal against the judgement was lodged on
15 May 1981 and the case was to be heard by the Summary Jurisdiction Chamber
of the Appeals Court.

8.2 Maitre Hamel further
stated that he saw Dave Marais, Jr. on two days during the trial and that
his client alleged that he had been detained since December 1979 in the
basement of the Direction generale d'investigations et documentation (DGIB]
political police prison at Ambohibao near Antananarivo, in a cell measuring
2m by lm and, apparently, without light.

8.3 Maitre Hamel stated
that at the time of writing (May 1981) his client had been held for over 18
months and was being held incommunicado; that he was forbidden to send or
receive letters or papers of any description whatsoever.

8.4 In an annexed legal
memorandum on the case of Dave Marais, Jr., his attorney acknowledged that
the procedure followed at the trial of Dave Marais in May 1981 was regular
from the legal point of view and the hearings were held correctly. He
averted, however, that his client was not being held in a proper
establishment of imprisonment together with other prisoners, but that he was
kept in strict solitary confinement in the cellar of a political police
prison and, that as a consequence, although he was attended by a Malagasy
medical doctor and his state of health appeared to be satisfactory, he was
suffering from depression after being held incommunicado for more than 18
months (by May 1981).

8.5 He stated that in
letters of 27 December 1979 and 14 January 1980 he had drawn the attention
of the Minister of Justice of Madagascar to his client's illegal detention,
pointing out that under articles 550 and 551 of the Code of Penal Procedure,
detainees who had already been sentenced or are awaiting sentence must be
held in an establishment of the Penitentiary Department of the Ministry of
Justice, and that the detention of a sentenced prisoner by a police
department is thus strictly illegal. He further stated that he had reminded
the Minister of Justice in several further letters without receiving any
reply and without any action being taken to date. Copies of five such
letters are annexed to Maitre Hamel's submission.

8.6 With respect to the
alleged victim's right to have adequate time and facilities for the
preparation of his defence and to communicate with counsel of his own
choosing, Maitre Hamel stated that, with the exception of two days during
the trial, he had been unable to communicate with his client.

8.7 As a consequence of
his enquiry into his client's state of health through the examining
magistrate, Maitre Hamel was charged at the instance of the Attorney-General
with spreading false rumours. He further stated that he had twice been
questioned by the DGID political police.

8.8 With respect to the
possibility of lodging a complaint on the grounds of infringement of liberty
pursuant to articles 112 and 114 of the Malagasy Penal Code, Maitre Hamel
stated that these two provisions were purely of a token nature and have no
practical significance. In substantiation of this allegation he stated that
on the occasion of the internment of another client he also lodged a
complaint under article 114 and that the Minister of Justice commandeered
this file from the court, thus making it impossible for any action to be
taken on the complaint.

8.9 In a letter dated 22
May 1981, Maitre Hamel added that, after the hearing of 15 May, Dave Marais,
Jr. remained for three days in Antananarivo Prison, where he had a long
interview with him. On 18 May, Marais was again taken to the political
police prison at Ambohibao in the same manner as before, i.e., a squad of
political police officers came to Antananarivo Prison demanding, without any
instructions or warrant, that the prisoner Dave Marais should be handed
over. He was again in the basement of the prison at Ambohibao, in a cell
measuring 2m by lm. Any communication at the political police prison was
forbidden and the detainees were kept completely incommunicado.

8.10 In a letter dated 14
June 1981, Maitre Hamel stated that Messrs. Marais and Wight were brought to
Antananarivo Prison for the preparatory formalities for a criminal court
proceeding to be held on 31 July 1981. Maitre Hamel indicated that Marais
was well, as far as his health was concerned, but that he was suffering from
psychological depression as a result of 20 months of unrelieved solitary
confinement in a basement.

8.11 The Committee has also
learned that the third person on the aircraft, Ed Lappeman, an American
citizen, was released by Malagasy authorities in November 1980.

9. At its thirteenth
session, the Human Rights Committee continued consideration of the Marais
case in view of the latest submissions from Maitre Hamel. It determined that
a decision as to admissibility would be taken at the fourteenth session. The
State party was so informed on 7 August 1981.

10. In a further letter
dated 4 August 1981 Maitre Hamel reported that Messrs. Marais and Wight
appeared before the Criminal Court of Antananarivo from 31 July to 4 August
1981 to answer charges of conspiracy together with 14 Malagasy defendants;
while most of the Malagasy defendants were sentenced to 5-10 years of
imprisonment, the two South Africans were acquitted. Mr. Marais spent a week
in Antananarivo Prison in order to appear before the Criminal Court and was
then taken back to the basement of the political police prison at Ambohibao.
The conditions of his detention remained unchanged.

11. At its fourteenth
session in October 1981, the Human Rights Committee noted with concern that
its decisions of 25 July 1980, 24 October 1980 and 31 March 1981, in which
it requested the State party to provide information and clarifications," had
gone unheeded and that thereby it had been seriously hampered in discharging
its responsibilities under the Optional Protocol.

12. The Committee had not
received any information that the matter had been submitted to another
procedure of international investigation or settlement. It therefore found
that it was not precluded by article 5 (2) (a) of the Optional Protocol from
considering the communication. The Committee was also unable to conclude, on
the basis of the information before it, that there were remedies available
to the alleged victim which he could pursue or should have pursued. The
Committee noted that the State party had failed to respond to a specific
request for information on domestic remedies, which the Committee addressed
to the State party in its decision of 25 July 1980. Accordingly, the
Committee found that the communication was not inadmissible under article 5
(2} (b) of the Optional Protocol.

13. On 28 October 1981,
the Human Rights Committee therefore decided:

(a) That the
communication was admissible;

(b) That, in accordance
with article 4 (2) of the Optional Protocol, the State party should be
requested to submit to the Committee, within six months of the date of the
transmittal to it of this decision, written explanations or statements
clarifying the matter and the remedy, if any, that may have been taken by
it;

(c) That the State party
should be informed that the written explanations or statements submitted by
it under article 4 (2) of the Optional Protocol must relate primarily to the
substance of the matter under consideration. The Committee stressed that, in
order to perform its responsibilities, it required specific responses to the
allegations made and the State party's explanations of the actions taken by
it. The State party was again requested, in this connection, to enclose
copies of any court orders or decisions of relevance to the matter under
consideration;

(d) To reiterate the
request contained in its decision of 31 March 1981 that the State party
should provide the Committee with detailed information about Mr. Marais'
state of health and his access to his legal representative. Without
prejudging the merits of the case, the Human Rights Committee stressed that
the State party should ensure that Mr. Marais was held under humane
conditions of imprisonment in acco In a letter dated 14 February 1982,
Maitre Hamel informed the Division of Human Rights that the Malagasy
political police had arrested him in connection with the officers' plot of
16 January 1982, searched his home and seized part of his dossier on the
Marais cases that he was subsequently detained in the basement of the
political police prison at Ambohibao and finally expelled from Madagascar to
France, a country of which he appears to be a citizen. In the same letter,
Maitre Hamel stated that Dave Marais was in good health. In a letter dated
22 May 1982, Maitre Hamel asserted that he still represented Mr. Marais.

15.1 The time-limit for the
State party's submission under article 4 (2) of the Optional Protocol
expired on 8 June 1982. By a note dated 11 August 1982, the State party
transmitted a copy of a letter dated 14 July 1982 signed by Dave Marais,
Jr., and John Wight and addressed to the Director General of the
Directorate-General of Investigations and Documentation of the Malagasy
Republic, reading as follows:

"we would like to thank you very
much for the letters from our families, which were safely received
yesterday. It is absolutely wonderful to have news of our wives after so
many months.

"In writing, I take the
opportunity also to thank you for all the money which you have provided to
buy cigarettes, soap and medicine. Also for the food, the room and
particularly for the kindness shown to us. We remain in good spirits and, in
view of the circumstances, want for almost nothing, except, of course, our
freedom.

"I would like to request your
permission to write to President Ratsiraka to ask him if he might be so good
as to consider a remission of sentence or an amnesty for us. I am extremely
eager to return home so as to be able to participate in the struggle against
apartheid ..."

15.2 The State party further
informed the Committee that the relevant Malagasy High Authorities were
studying the action to be taken on the requests made in the letter referred
to above.

16.1 The Human Rights
Committee further examined the communication of Dave Marais at its
seventeenth session. In view of the information furnished by the State
party, which the Committee welcomed, and in order to give time to the
President of the Democratic Republic of Madagascar to respond to the appeal
for clemency made to him by Messrs. Marais and Wight, the Committee decided
to defer further consideration of their cases until its eighteenth session.
The State party was so informed on 25 November 1982 and was requested to
inform the Committee not later than 31 January 1983 whether the appeal for
clemency made by Messrs. Marais and Wight was granted.

16.2 The Human Rights
Committee notes with regret that the State party has not responded to its
request.

17.1 The Human Rights
Committee has the obligation under article 5 (1) of the Optional Protocol to
consider this communication in the light of all written information made
available to it on behalf of Dave Marais, Jr., and by the State party. It,
therefore, decides to base its views on the following facts, which have not
been contradicted by the State party.

17.2 Dave Marais, Jr., a
South African national, was a passenger on a chartered aircraft which, en
route to Mauritius, made an emergency landing in Madagascar on 18 January
1977. The pilot of the plane, John Wight, a South African national, another
passenger on the plane, Ed Lappeman, a national of the United States of
America, and Dave Marais, Jr., were tried and sentenced to five years'
imprisonment and a fine for overflying the country without authority and
thereby endangering the external security of Madagascar. On 19 August 1978,
while serving his sentence, Dave Marais escaped from the Antananarivo
Central Prison, was subsequently apprehended, tried on charges of
prison-breaking and sentenced to an additional two years' imprisonments an
appeal was lodged on 15 May 1981.

17.3 Dave Marais' first
attorney, Jean-Jacques Natai, left Madagascar; he was subsequently refused
re-entry into Madagascar. Later Maitre Eric Hamel became the defence
attorney for Dave Marais. Although Maitre Hamel obtained a permit from the
Examining Magistrate to see his client, he was repeatedly prevented from
doing so. From December 1979 to May 1981, Dave Marais was unable to
communicate with Maitre Hamel and to prepare his defence, except for two
days during the trial itself. On 11 February 1982, Malagasy political police
authorities arrested Maitre Hamel, detained him in the basement of the
Ambohibao political police prison and, subsequently, expelled him from
Madagascar, thereby further impairing his ability effectively to represent
Dave Marais.

17.4 In December 1979, Dave
Marais was transferred from the Antananarivo Prison to a cell measuring lm
by 2m in the basement of the political police prison at Ambohibao and has
been held incommunicado ever since, except for two brief transfers to
Antananarivo for trial proceedings.

18.1 In formulating its
views, the Human Rights Committee also takes into account that, although the
State party was requested to furnish the Committee with copies of any court
orders or decisions of relevance to the case and with information with
regard to Mr. Marais access to his legal representative Maitre Hamel, none
has been received. The Committee further requested the State party to give
detailed information relating to the alleged victim's state of health and
whereabouts. No information has been received other than a copy of a letter
purportedly written by Dave Marais and John Wight and transmitted by the
State party by note of 11 August 1982.

18.2 With regard to the
burden of proof, the Committee has already established in its views in other
cases (e.g., R. 7/30) that the said burden cannot rest on the author of the
communication alone, especially considering that the author and the State
party do not always have equal access to the evidence and that frequently
the State party alone has access to relevant information. It is implicit in
article 4 (2) of the Optional Protocol that the State party has the duty to
investigate in good faith all allegations of violation of the Covenant made
against it and its authorities, and to furnish to the Committee the
information available to it.

18.3 In the circumstances,
the Committee cannot but give appropriate weight to the information
submitted on behalf of Dave Marais, including that submitted by his legal
representative, Maitre Hamel.

19. The Human Rights
Committee, acting under article 5 (4) of the Optional Protocol to the
International Covenant on Civil and Political Rights, notes with serious
concern that the State party has ignored its repeated requests for specific
information and has thereby failed to comply with its obligations under
article 4 (2) of the Optional Protocol. The Committee is of the view that
the communication discloses violations of the Covenant, in particular,

of articles 7 and 10 (1),
because of the inhuman conditions in which Dave Marais, Jr., has been held
in prison in Madagascar incommunicado since December 1979;

of article 14 (3) (b) and (d),
because he has been denied adequate opportunity to communicate with his
counsel, Maitre Hamel, and because his right to the assistance of his
counsel to represent him and prepare his defence has been interfered with by
Malagasy authorities.

20. The Committee,
accordingly, is of the view that the State party is under an obligation to
provide the victim with effective remedies for the violations which he has
suffered and to take steps to ensure that similar violations do not occur in
the future. The Committee would welcome a decision by the State party to
release Mr. Marais, prior to completion of his sentence, in response to his
petition for clemency.